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TMI Blog2008 (4) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent from service which is completely vitiated on account of the participation of the three members of the Enquiry Committee and the orders of the 1st and 2nd Appellate authorities dated 8.7.1992 and 22.12.1994 and allowed the writ petition of the Vijay D. Wani respondent(herein) and directed the Cantonment Board to reinstate the petitioner (respondent herein) into service with 50% backwages and continuity of service. 2. Brief facts which are necessary for disposal of this appeal are that the respondent was appointed as Junior Engineer (Electrical) with Pune Cantonment Board with effect from 9.3.1977. Later on he was re-designated as Sectional Engineer (Electrical). In 1987, the Cantonment Board decided to purchase N.C.T. pies f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief, Southern Command, Pune and the same was dismissed on 8.7.1991. The respondent preferred second appeal before the Government of India, Ministry of Defence, which was also dismissed on 22.12.1994. 3. Aggrieved against this order the respondent preferred an appeal before the High Court. The High Court rejected the first contention of the respondent that all the three members of the Enquiry Committee happened to be the members of the Board in which capacity they had scrutinized, approved and accepted the estimates prepared by the respondent when the estimates were placed before the Cantonment Board. Since they were interested in the matter, therefore, the enquiry should have been quashed on the ground of bias. Secondly, it was contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see that their report be upheld by the Committee. Therefore, there was a legitimate apprehension in the mind of the respondent that the three members of the committee who were inquiring against the respondent and found him guilty were interested to see that their report should be confirmed by the Board and this seriously prejudiced and biased the process of decision making him guilty. This contention was upheld by the Division Bench and consequently the Division Bench set aside the order Cantonment Board as well as the order on appeal by the GOC-in- Chief, Southern Command, Pune and the order passed by the Secretary, Government of India, Ministry of Defence. Aggrieved against the order passed by the Division Bench of the High Court, this ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, accused of misconduct is entitled to a hearing by the Council. In this case Enquiry Committee composed of the President and the Vice-President and three other members of the council who constituted as members of the disciplinary committee, was also members. Their Lordships held as under: Accordingly, the finding of the council holding the respondent members guilty of misconduct was vitiated by the participation of the members of the Disciplinary committee. This was on the basis of the Principle of apprehension of a bias. Their Lordships observed in the case of Manek Lal v. Prem Chand reported in AIR 1957 SC 425 wherein it was observed: It is well settled that every member of a tribunal that is called upon to try issue in judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that Managing Director dismissing an employee cannot sit in the Board of Directors to hear the employee's appeal. Doctrine of necessity was inapplicable as the Board could have delegated its appellate power to a committee. Similarly in Sir Bloom-Cooper's Comment on Bias in appeal , 2005 Public Law 225 in which he quotes at page 227 a very illuminating judgment of Judge Jerome Frank in the case of Rt.J.P. Linhan Inc., (138 F20 650) a brief excerpt from which reads: Democracy must, indeed, fail unless our courts try cases fairly, and there can be no fair trial before a judge lacking in impartiality and disinterestedness. If, however, 'bias' and 'partiality' be defined to mean the total absence of preconcepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt real. Consequently, the view taken by the Division Bench of the High Court cannot be faulted. 8. However, learned counsel for appellants submitted that since the respondent did not work, therefore, he should not be paid any salary under the Rule no work no pay . In this connection he invited our attention to the following cases: 1.Baldev Singh v. Union of India Ors. Reported in 2005(8)SCC 747. 2. India Literacy Board Ors. V. Veena Chaturvedi Ors. Reported in 2005 (3) SCC 79. 3. Badrinath v. Government of Tamil Nadu Ors. Reported in 2000(8) SCC 395. In the case of Baldev Singh (Supra), the appellant was held in a criminal case and thereafter on his acquittal a question arose with regard to his back wages, their L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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